COMMUNIA FINAL REPORT | Recommendation # 3

Subtitle: 
Prevent unnecessary protection of works of authorship

In order to prevent unnecessary and unwanted protection of works of authorship, full copyright protection should only be granted to works that have been registered by their authors. Non-registered works should only get moral rights protection.

(Corresponding to COMMUNIA Policy Recommendation 8 - Download Postcard)

One of the unintended consequences of the near universal access to electronic publishing platforms is an increase in the amount of works that are awarded copyright protection even though their authors do not require or desire this protection. This extension of protection threatens to undermine the value and effectiveness of protection for works where copyright protection is necessary and desired. Given the above full copyright protection should only be granted to works that have been registered by their authors. Non-registered works should only be granted moral rights protection. This recommendation requires the introduction of a registration system. Such a system needs to be accessible and transparent.

Background

In the field of copyright, the current default level of protection is “all rights reserved” for the maximum possible duration allowed by the law. No formalities are required, not even a statement that a certain work is copyright protected. This “copyright default rule” automatically reserving all rights to the author has been generalised thanks to the Berne Convention and the TRIPS Agreements.

Information and communication technologies – and the Internet in particular – make everybody a potential author and self-publisher. Instead of following the traditional “long route,” passing through several professional intermediaries, new authors are able to reach the public directly or through new “lightweight” service providers. The revolution represented by the so-called Web 2.0 makes the phenomenon of authors publishing through new “short routes” even more significant. Users generate a growing percentage of creative material and the distinction between authors and their audience becomes increasingly blurred.[20] Additionally, creating by remixing existing works becomes increasingly common and socially valuable, thanks to new technologies.[21]

In such a setting, in order to make possible many of the most productive forms of distributed and incremental creation enabled by information and communications technologies (e.g. wiki websites), thousands of authors should understand the complex working of current copyright law and of copyright licenses. In fact, in absence of any licensing, intellectual creations cannot be reproduced or altered in any way. However, there are transaction costs associated to the understanding of copyright licenses. Moreover, these transaction costs concern both authors and their readers/users. The latter are affected in two ways: as potential authors, since they have difficulties in understanding what they can and cannot do; and as simple users/readers, since they cannot legally share/archive freely accessible online material without asking for permission.

Additionally, a significant amount of new authors publishing over the Internet does not need all the exclusive rights provided by copyright and it is almost undisputed amongst economists that granting an unnecessary exclusive right reduces social welfare.

Indeed, more and more new authors recognize that this situation is suboptimal and see the benefits of more open and sharing oriented approaches. Hence, the use of open licenses is quantitatively significant and growing. For instance, in November 2009, the Creative Commons Monitor project calculated that more than 207 million Web pages has been licensed under some Creative Commons Public License. Moreover, a single service provider specialized in pictures, Flickr, offers more than 120 million pictures under open copyright licenses and Wikipedia, the free online encyclopedia, offers more than 3,175,000 articles in English, more than 1 million in German, etc.

That said, and despite the success of open licenses and their promotions through communities and social networks, the majority of creators remain (and probably will remain) unaware of copyright related issues. This locks-in a huge amount of intellectual creations because of the “all rights reserved” default rule provided by the existing copyright regime.

As suggested by some scholars, a potential solution to the weaknesses of  the current copyright regime would be a setting in which published works are not copyrighted, unless the authors comply with some formalities which should be very simple, cheap and non-discriminatory with respect to national/foreign authors.[22] With the principal aim of preventing unnecessary protection, the Copyright 2.0 proposal is a specific articulation of such an alternative copyright default rule. The proposal was first presented at the 2nd COMMUNIA Conference by Professor Marco Ricolfi.[23]

Proposal

Change the existing default level of copyright protection (i.e. Adopt Copyright 2.0). “Copyright 2.0” identifies a new kind of copyright having the basic features detailed below.

(1) Traditional copyright, or Copyright 1.0, is still available.

(2) In order to be enjoyed, Copyright 1.0 has to be claimed by the creator at the onset, e.g. by inserting a copyright notice, such as ©, as done by the United States before accessing the Berne Convention:

  1. copyright 1.0 should be claimed before the first publication of a work;
  2. at certain conditions, the Copyright 1.0 notice could also be added after the first publication (possibly during a specified and short grace period, e.g. one year)
  1. to minimize transaction costs, late notices should only have the effect of giving exclusivity against certain classes of unauthorized uses, especially commercial uses;
  2. the effect of a late notice would be similar to the one currently achieved by a Creative Commons (CC) NonCommercial license, such as CC BY-NC.

(3) If no notice is given, Copyright 2.0 applies and this gives creators mainly one right, the right to attribution:

  1. the “default” legal status of creative works could be similar to the one of works licensed under a (CC) Attribution (BY) public license;
  2. the attribution requirement should impose the minimum possible burden on subsequent creators, taking into account the specificities of digital distributed and incremental creation;
  3. the possibility of reserving some more rights to authors under Copyright 2.0 is worth exploring, if this significantly decreases the likelihood that Copyright 1.0 is chosen by a large proportion of authors:
  1. the Commission should fund empirical studies and surveys to determine the minimum set of rights that authors publishing over the Internet want/need to reserve to themselves;
  2. in any case, non-commercial uses should always be allowed, including for remixing purposes (i.e. to create derivative works): hence, the default legal status of works under Copyright 2.0 could be similar to a CC BY-NC license.

(4) The Copyright 1.0 protection given by the original notice is deemed withdrawn after a specified period of time (e.g. the 14 years of the original copyright protection), unless an extension period (e.g. of another 14 years or longer) is formally requested:

  1. in order to reduce transaction costs and ease the problem of orphan works, the extension request must be entered in a copyright register kept by an authority of some kind;
  2. the registration procedure should be accessible from the Internet and the main registration data should be freely accessible over the Internet.

The idea of a registration system for creative works is increasingly gaining momentum. The establishment of a voluntary register of copyright is endorsed also by the Gowers Review.[24] Today, technological advancement is making easier to set up an efficient registration system for creative works. State-of-the art technology enables the creation of global digital repositories that ensure the integrity of the digital works and the identity of the person or entity claiming  copyright. Concurrently, modern technology renders the corresponding filings user-friendly and inexpensive.

Two options may be available in implementing a registration system. Firstly, registration could be set as a precondition for protection. In this scenario registration will function as a legal tool as well as a technical tool.[25] As a legal tool, registration would provide the creator of a work with the full enjoyment of ownership rights. In contrast, absent registration, the default level of protection would be limited to moral rights, as described earlier. As a technical tool, registration will enable searches on the status of any creative work. Alternatively, if one were to consider that making registration into a global registry, rather than notice, a precondition for protection, is too harsh a requirement, then registration might at least be required as a precondition of extension of protection.

The need to develop open standards for copyright registries interoperability has been also discussed in connection with COMMUNIA meetings. In particular, some efforts to propel the discussion over interoperability of copyright registries have been achieved at the 3rd Creative Commons Technology Summit that was conducted in parallel to the 2nd COMMUNIA conference in Turin.[26] As a related project, the Open Standards for Copyright Registries Interoperability Group (OSCRI) was set up as a “platform for the study and development of standardisation rules and protocols in the copyright field, with the main aim of creating a scenario where all copyright registries are compatible between each other.”[27] Commercial enterprises that were members in the COMMUNIA project, which are already offering copyright registries to clients in the creative industry sector, are working towards the goal of interoperability. An open standard and open metadata would allow also private parties to manage the registration process and offer search services, as an additional governance options to public authorities or monopolies for running registries.

 Theoretically, the introduction of any kind of formalities to enjoy copyright protection may require an amendment of the Berne Convention. Likewise, consent of state members would be required under Art. 9 of TRIPs.

Objections and Critiques

(1) We survived until now with the “all rights reserved” copyright default, why should we change?

Answer – The desirability of a “no formalities” approach has been dramatically reduced by the growing importance of intellectual creations directly published by their authors typically over the Internet.

(2) The proposed approach may be appropriate or neutral for amateurs publishing over the Internet, but it creates additional costs for professional authors and their publishers or intermediaries. What guarantees that the net effect is positive for the society?

Answer – Insofar the only formality to receive the current standard of full protection for one’s published works is explicitly to state “© Copyright: all rights reserved”, no author is likely to have her incentives lowered by such “formality”. In particular, many professional authors and firms active in the field of copyrighted work production should not even change the copyright notice they are already using.

(3) You are saying that several authors are already adopting open copyright licenses: why should the legislator intervene, if “the market” is already taking care of this issue?

Answer – Some authors are aware of the fact that using open licensing schemes is not only in the best interest of society as a whole, but also in their own best interest as individuals. However, in order to “opt out” of the current copyright default rule, authors publishing over the Internet need to incur useless transaction costs. In fact, in order to reap the full benefit of the possibilities offered by the digital online environment, not only authors, but also all the readers/users (who are also potential subsequent authors) should become aware of the working of copyright and of open licensing schemes. In this setting, changing the current default rule entails lower costs for society (see also the answer 4).

(4) The proposed approach just shifts costs between non-professional and professional creators.

Answer – Even if the cost of “opting out” from the new Copyright 2.0 default rule were the same for each user as the cost of opting out from Copyright 1.0 (and this is not the case: see answer 2), making professional authors explicitly deviating from the (new) Copyright 2.0 default rule would be more efficient, since traditional (i.e. following the “long route”) professional authors/intermediaries are a minority (in absolute quantitative terms) of publishing authors (considering all the authors publishing through the Internet).

(5) If many authors are already publishing on the Internet and they are not even aware of holding copyright over their creations, why should we bother changing the existing default rule for copyright protection? They will not complain in any case, as they do not even know/care about their rights.

Answer – This critique is not conclusive, since – ex post – the same authors could understand that “their rights have been violated” and – for opportunistic reasons or as a “matter of principle” – this could create an incentive to litigate. In other words, the existence of an “all rights reserved” default level of protection creates scope for significant transaction costs and increases the likelihood of litigations. In particular, this situation may discourage any professional reuse of creations which are freely accessible over the Internet (Morando 2010). This situation is similar to the one preventing the effective reuse of orphan works (Brito & Dooling 2005).

Relevant Actions to Be Taken by:

  1. European Commission (EC)
  1. Introduce legislation that reserves full copyright protection for works that have been registered by their authors
  2. Set up a pan-European registration system for works or authorship and related rights.
  1. European Parliament (EP)
  1. Introduce legislation that reserves full copyright protection for works that have been registered by their authors
  1. Member States (MS)
  1. Introduce legislation that reserves full copyright protection for works that have been registered by their authors

[20] See Yochai Benkler, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, 52 Fed. Comm. L. J. 561 (2000); see also Liu, J., Copyright Law’s Theory of the Consumer, 44 B. C. L. Rev. 397 (2003).

[21] See Lessig, Lawrence, Remix: Making Art and Commerce Thrive in the Hybrid Economy (Bloomsbury 2008); Don Tapscott and Anthony D. Williams, Wikinomics: How Mass Collaboration Changes Everything (Atlantic Books 2008); Stefan Thomke and Eric Von Hippel, Customers as Innovators: A New Way to Create Value, 80 Harv. Bus. Rev. 74 (2002).

[22] See Christopher Sprigman, Reform(aliz)ing Copyright, 57 Stan. L. Rev. 485 (2004); Lawrence Lessig, Free Culture: The Nature and Future of Creativity (Bloomsbury Academic 2005); Lawrence Lessig, The Future of Ideas: The Fate of The Commons in a Connected World (Vintage Books 2002).

[23] See Marco Ricolfi, Copyright Policies for Digital Libraries in the Context of the i2010 Strategy, paper presented at the 1st COMMUNIA Conference, Louvain-la-Neuve, Belgium (July 1, 2008); see also Marco Ricolfi, Making Copyright Fit for the Digital Agenda (forthcoming 2011)

[24] See Andrew Gowers, Gowers Review of Intellectual Property, Recommendation 14b (HM Treasury, November 2006), available at http://www.ipo.gov.uk.  

[25] See 3rd COMMUNIA Workshop, Amsterdam, October 20-21, 2010, http://communia-project.eu/ws03.

[26] See Creative Commons, Creative Commons Technology Summit 2009-06-26, http://wiki.creativecommons.org/ Creative_Commons_Technology_Summit_2009-06-26.

[27] See OSCRI, Open Standards for Copyright Registries Interop, WIkidot OSCRI Site, http://oscri.org.